Decision Date: 10/31/95 Archive Date:
10/31/95
DOCKET NO. 93-26 888 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Montgomery, Alabama
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
D. P. Havelka, Associate Counsel
INTRODUCTION
The veteran's active military service extended from March
1942 to September 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1992 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama. That rating decision denied service
connection for the cause of the veteran's death.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant, the widow of the veteran, contends that the
RO committed error in denying service connection for the
cause of the veteran's death. She argues that the veteran's
myocardial infarction was caused by his service-connected
disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim
for service connection for the cause of the veteran's death
is well grounded.
FINDINGS OF FACT
1. The veteran died in September 1992, at the age of 73.
The immediate cause of death was myocardial infarction, and
chronic renal failure was a significant condition
contributing to death but not resulting in the underlying
cause of death.
2. The veteran's service connected disabilities were pes
planus, 30 percent disabling; anxiety neurosis, 30 percent
disabling; and history of right hernia repair,
noncompensable.
3. There is no competent medical evidence of heart disorder
or renal disorder, during the veteran's active military
service or during the first post service year.
4. There is no medical opinion linking the veteran's fatal
myocardial infarction, or his chronic renal failure, with
his service-connected disabilities or his active military
service.
5. The fatal myocardial infarction was not the result of
disease or injury during the veteran's active military
service.
6. The service-connected disabilities did not make the
veteran less able to resist the fatal myocardial infarction
or in any way hasten his death.
CONCLUSION OF LAW
The appellant has not presented a well grounded claim for
service connection for the cause of the veteran's death. 38
U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1310, 5107(a) (West
1991); 38 C.F.R. §§ 3.303, 3.312 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law provides that "a person who submits a claim for
benefits under a law administered by the Secretary shall
have the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim
is well grounded." 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection
for a particular disability requires more than an allegation
that the disability had its onset in service or is service-
connected; it requires evidence relevant to the requirements
for service connection and of sufficient weight to make the
claim plausible and capable of substantiation. See Franko
v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990).
Service connection for the cause of the veteran's death may
be granted if a disability incurred in or aggravated by
service was either the principle, or a contributory, cause
of death. 38 C.F.R. § 3.312(a) (1994). For a service
connected disability to be the principle cause of death it
must singly or with some other condition be the immediate or
underlying cause, or be etiologically related. 38 C.F.R. §
3.312(b) (1994). For a service connected disability to be a
contributory cause of death it must have contributed
substantially or materially, and combined to cause death.
38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312(c)(1)
(1994).
In this case, the death certificate shows that the veteran
died in September 1992, at age 73. No autopsy was
conducted. The immediate cause of death was listed as
myocardial infarction. The only other significant condition
listed as contributing to death, but not resulting in the
underlying cause of death, was chronic renal failure.
During the veteran's lifetime, service connection was
granted in an October 1946 rating decision for the post
operative residual scar of a right herniorrhaphy, at a
noncompensable (0%) disability rating from September 1945.
This rating remained in effect until the veteran's death.
Service connection was also granted in an October 1947
rating decision for symptomatic pes planus, at a 10 percent
disability rating and for an anxiety neurosis, at a 10
percent disability rating, from November 1946. These ratings
were increased to 30 percent disability ratings in an
October 1987 rating decision and they remained in effect
until the veteran's death. As of the October 1987 rating
decision, the veteran was also nonservice-connected for:
refractive error, cardiovascular disease, gout, a history of
diabetes mellitus, hallux valgus of the left foot and
hearing loss.
There is no competent medical evidence of record that in any
way links the veteran's fatal myocardial infarction to these
service connected disabilities. The first evidence of any
cardiovascular disorder is an October 1965 Doctor's
Affidavit which reveals a diagnosis of "moderate arterial
hypertension." A December 1965 VA examination revealed that
the veteran's blood pressure was 210/120. A June 1967 VA
examination revealed a diagnosis of hypertensive
cardiovascular disease. A November 1970 VA examination
revealed that the veteran's heart was enlarged and contained
an annotation that the veteran had a known case of
hypertensive cardiovascular disease which was under
treatment. A November 1973 VA examination contained the
following diagnoses, among others, of the veteran's physical
condition: hypertensive cardiovascular disease, generalized
arteriosclerosis and diabetes mellitus. The examining
physician noted that the veteran had recently been diagnosed
with his diabetic condition.
April and May 1983 medical certificates from J. L. Dozier,
M.D. reveal diagnoses of hypertension. A December 1986
medical certificate signed by Terry N. Rivera, M.D. reveals
diagnoses of chronic renal failure and hypertension. A July
1987 medical certificate from Dr. Dozier includes the
diagnosis of "chronic renal failure."
A medical record dated January 1987 shows an assessment of
chronic renal failure. An October 1987 VA examination noted
the veteran's history of chronic renal failure. A letter
from Dr. Dozier stated again that the veteran was under
treatment for arterial hypertension and chronic renal
failure.
Private hospital records from Providence Hospital reveal
that veteran was hospitalized for approximately one week of
treatment in February 1989. The final diagnosis included
end stage renal failure and hypertension. In November 1989
the veteran was hospitalized twice more at Providence
Hospital. The diagnosis for the first hospitalization on
November 14, 1989 revealed a diagnosis that included end
stage renal disease and congestive cardiomyopathy. Later in
the month end stage renal disease was again included in the
diagnosis. The final medical evidence submitted consists of
private outpatient medical records from September 1986 to
January 1989. These records document the veteran's
continued treatment for his chronic renal failure.
While there are numerous medical records that show that the
veteran suffered from both hypertension and chronic renal
failure, there is no medical evidence of record which
relates these medical conditions to either the veteran's
service-connected disabilities or to his period of active
military service.
In deciding the claim for service connection for the cause
of the veteran's death, the Board must also consider whether
the disabilities that caused the veteran's death, that is,
the myocardial infarction or that contributed to the
veteran's death, namely, chronic renal failure, may be
service-connected. Service connection may be granted for a
disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. §§
101(16), 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.305
(1994). Cardiovascular-renal disease, including
hypertension, may be presumed to have been incurred during
active military service if it is manifest to a degree of 10
percent within the first year following active service. 38
U.S.C.A. §§ 1101, 1112, (West 1991); 38 C.F.R. §§ 3.307,
3.309 (1994).
The three elements of a "well grounded" claim for service
connection are: (1) evidence of a current disability as
provided by a medical diagnosis; (2) evidence of incurrence
or aggravation of a disease or injury in service as provided
by either lay or medical evidence, as the situation
dictates; and, (3) a nexus, or link, between the in-service
disease or injury and the current disability as provided by
competent medical evidence. See Caluza v. Brown, 7 Vet.App.
498, 506 (1995); see also 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303 (1994).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Derwinski, 5 Vet.App. 91, 92-93 (1993). For
some factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where
the claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence
is required. Id. at 93. Lay evidence is also acceptable to
show incurrence in service if the veteran was engaged in
combat and the evidence is consistent with the
circumstances, conditions and hardships of such service,
even though there is no official record of such incurrence.
38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1994).
All of the medical evidence of record establishes that the
veteran suffered from hypertension, cardiovascular disease,
arteriosclerosis, and, later in his life, chronic renal
failure. The death certificate specifically establishes
that the veteran died due to a myocardial infarction with
chronic renal failure as a significant condition
contributing to death but not resulting in the underlying
cause of death.
The second element of a well grounded claim, that is,
evidence of incurrence or aggravation of cardiovascular-
renal disease during active service, or the first post
service year, is lacking. The Board notes that the
veteran's service medical records appear to be complete. A
January 1942 entrance examination reveals that the veteran's
cardiovascular system was normal. The examining physician
noted that the veteran was "physically fit." The veteran's
September 1945 separation examination also reveals that his
cardiovascular system was normal with no abnormalities noted
by the examining physician. His blood pressure was noted to
be 120/76. There is no indication in any of the veteran's
service medical records that he suffered from hypertension,
cardiovascular disease, renal disease or any other disorder
which caused his fatal myocardial infarction more than four
decades later.
The final element, that is, competent evidence of a link
between service and the fatal myocardial infarction is also
lacking. The appellate contends that the her husband's
fatal myocardial infarction was caused by his service and
his service-connected disabilities. This appellant's
statements are not competent to establish that the veteran
incurred his a myocardial infarction, or any other disease
which may have caused a myocardial infarction, during his
period of active service during World War II. While lay
testimony is competent to establish the occurrence of an
injury, it is not competent to provide a medical diagnosis.
See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992).
Medical diagnosis and causation involve questions that are
beyond the range of common experience and common knowledge
and require the special knowledge and experience of a
trained physician. Because she is not a physician, the
appellant is not competent to make a determination that the
veteran's myocardial infarction was due to any disease that
may have been incurred during the veteran's service over
forty years prior to his death rather than at any other time
in the veteran's life. See Espiritu, 2 Vet.App. at 495;
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
Upon review of all the evidence of record the Board finds no
competent medical evidence that links any inservice medical
condition to the veteran's death. The first report of any
heart disease or hypertension was in 1965, more than two
decades after the veteran separated from service. No post
service medical opinion relates the myocardial infarction,
which resulted in the veteran's death, to his active
service. Therefore, the claim fails to meet the third
element of a well grounded claim under Caluza. The
appellant has failed to meet two of the three elements
required to present a well grounded claim under Caluza.
Because the appellant has not met her burden of submitting
evidence to justify a belief by a fair and impartial
individual that the claim is well grounded, it must be
dismissed.
While the RO denied service connection for the veteran's
death on the merits, the Board concludes that dismissing the
appeal because the claim is not well grounded is not
prejudicial to the appellant, as the appellant's arguments
concerning the merits of the claim include, at least by
inference, the argument that sufficient evidence to
establish a well grounded claim is of record. Therefore, we
conclude that it is not necessary to remand the matter for
the issuance of a supplemental statement of the case
concerning whether the claim is or is not well grounded.
See Bernard v. Brown, 4 Vet.App. 384, 394 (1993); VAOGCPREC
16-92 (O.G.C. Prec. 16-92) at 7-10.
ORDER
Because it is not well grounded, the claim for service
connection for the cause of the veteran's death must be
dismissed.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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